91 Ind. 511 | Ind. | 1883
— It is insisted by the appellants that the judgment should be reversed for the reason that the special judge, appointed to try this cause, had no .authority to act as such. No objection was made in the court below, and appellants can not here successfully complain- unless the record affirmatively shows that the appointment was without authority of law. This it does not do. There are cases in which a judge pro tempore may be appointed by a judge of the superior court, and as the record discloses nothing to the contrary we must presume this to be such a case. Presumptions are always indulged in favor of the action of the trial court, and, we .must, therefore, presume that the appointment in this case was legal and regular. Of course, if the statute forbid such an appointment, or if the record showed the case to be one in which such an appointment could not be legally made, tve should be bound to hold the proceedings void. This, however, is not such a .case. The record being silent as to any objections to the appointment, and there being cases in which an appointment may be made, we must sustain the ruling of the trial court. Zonker v. Cowan, 84 Ind. 395; Kennedy v. State, 53 Ind. 542; Winterrowd v. Messick, 37 Ind. 122; Feaster v. Woodfill, 23 Ind. 493; Kane v. State, 71 Ind. 559.
This action was commenced by Margaret Coble to recover the possession of real estate; pending the action she died, and the appellee, having shown that he had purchased the land from her, was substituted as plaintiff.
The land in dispute was owned by the husband of Margaret Coble at the time of his death, and her interest is such
The appellee was permitted to prove the actual consideration -of the deed, and in this there was no error. New rules are better settled than that which declares that the question of consideration is not closed by the recitals of the deed, and that the true consideration may always be shown by parol evidence.
What the grantor said at the time of making the deed, as to the consideration upon which it was founded, was properly admitted as part of the res gestae. The declarations of a deceased grantor are not, it is true, admissible in favor of the heirs or executors, unless some rule of evidence would make them competent in his favor, if he were living and a party to the action ; but when they are part of the transaction they are always competent. The rule which we deem the correct one is thus expressed in a recent work on evidence: “But the decedent’s admissions and declarations are not competent in favor of the representative, unless some rule of evidence would admit them in favor of the decedent if living, as, for instance, where they were'part of the res gestee of an act properly in evidence.” Abbott Trial Ev. 60; Doe v. Reagan, 5 Blackf. 217 (33 Am. Dec. 466); Hamilton v. State, 36 Ind. 280 (10 Am. R. 22); Howe v. Yopst, 20 Ind. 409; Ghormley v. Young, 71 Ind. 62; Baker v. Gausin, 76 Ind. 317.
Where declarations form part of the thing done, they are admissible in evidence whether the person by whom they were made is, or is not, a competent witness, and the fact that Mrs. Coble would not have been a competent witness is therefore unimportant.
A scrivener employed for the purpose of drafting a deed is
It is a settled rule of practice that no questions upon the admission or exclusion of evidence will be considered on appeal unless properly presented by the motion for a now trial, and this rule precludes us from considering many of the questions argued by counsel, as the reasons assigned in the motion for a new trial are not sufficient to present them.
The 7th section of the statute of descents contains this provision : “An estate which shall have come to the intestate by gift or by conveyance, in consideration of love and affection, shall, if the intestate die without children or their descendants, revert to the donor, if living, at the intestate’s death, saving to the widow or widower, however, his or her rights therein.” We think the evidence brought the appellee’s case fully within this statute. The recital of the nominal consideration of $1 was, as we have seen, not conclusive,, and the evidence clearly shows that love and affection, and not the nominal sum named, was the real consideration. The land had reverted to Margaret Coble, and her conveyance vested a good title in the appellee.
During the lifetime of the children of John Coble, Margaret Coble instituted partition proceedings, and judgment was entered, partitioning the land, awarding to her the life-estate, and to John Coble’s children the fee, and this decree is relied upon as estopping her grantee from claiming title. It is the law of this State that an ordinary judgment of partition does not create title, but simply makes division of the land. Miller v. Noble, 86 Ind. 527; Utterbaak v. Terhune, 75 Ind. 363; Avery v. Akins, 74 Ind. 283; Teter v. Clayton, 71 Ind. 237. It is also the law, as these cases show, that the
Judgment affirmed.